Crime & Federalism

The Lewis and Clark Law Review has published a most interesting symposium entitled: "Federalism After Gonzales v. Raich."  They have also put the symposium articles online for free download.  Here are links to all the articles, though if you only have limited time, Pushaw's neo-federalist framework is quite sensible, and well worth reading:

Foreword: Limiting Raich by Randy E. Barnett

Is Morrison Dead? Assessing a Supreme Drug (Law) Overdose by Jonathan H. Adler

Why Not Heighten the Scrutiny of Congressional Power when the States Undertake Policy Experiments? by Ann Althouse

Raich and Judicial Conservatism at the Close of the Rehnquist Court by Eric R. Claeys

Rescuing Federalism After Raich: The Case for Clear Statement Rules by Thomas W. Merrill

“Society Must Be [Regulated]”: Biopolitics and the Commerce Clause in Gonzales v. Raich by John T. Parry

The Medical Marijuana Case: A Commerce Clause Counter-Revolution? by Robert J. Pushaw, Jr.

What Hath Raich Wrought? Five Takes by Glenn H. Reynolds & Brannon P. Denning

In a recent post discussing Justice Scalia's concurring opinion in Gonzales v. Raich, Orin Kerr wrote:

I've read lots of speculation in the blogosphere that Justice Scalia voted in the government's favor in Gonzales v. Raich because he's a social conservative who wants the government to crack down on drugs. If that's true, though, why did he vote in favor of the marijuana grower in Kyllo v. United States? And why did he vote in favor of the crack dealer in United States v. Booker? Is the idea that Scalia is principled when he votes in favor of defendants, but is just a social conservative when he votes in favor of the government?

As an initial matter, Kyllo wasn't about a marijuana grower: it was about whether cops could use thermal imaging devices to invade one's home.  The Eric Berndt incident taught us that Scalia cares a lot about sexual privacy - or, at least, his own sexual privacy.

Booker wasn't about crack dealers: it was about whether certain facts had to be proved to a jury. Even after Kyllo and Booker, law enforcement has plenty of ways to capture drug dealers, and to send them away to prison for a very long time.  So the practical effect of Kyllo and Booker had little to do with increased drug use.  Raich was different.  Very different.  And Scalia and other anti-drug advocates saw that.

To many people, Raich was not about the Commerce Clause: it was about medical marijuana.  The immedate effect of Raich would have been disastrous: thousands of Californians and citizens from ten other states would have been able to legally smoke marijuana.  Post-Raich, many other states would have legalized medical marijuana.  Thus, for an anti-drug zealot, Raich would have been terrible.  By holding the way he did, Justice Scalia ensured that marijuana will remain illegal for a long time.

Having said that, I'm not sure Justice Scalia voted in the government's favor because he hates drugs, but I can understand why others think this.

Justice Scalia advocates that judges return to an original understanding of the Constitution.  Most of us have seen or heard him lecture on his originalism (or read his book), so there's no need to rehash his arguments.  But in Raich, Scalia did not turn to an original understanding of the Commerce or Necessary and Proper Clauses.  I've read Scalia's concurrence three times and can't find an reference to originalism.  So, where goeth Scalia's originalism?

People are justifiably confused, and justifiably entitled to believe that Justice Scalia relied on extrajudicial reasons for siding with the government in Raich.  Scalia didn't justify his departure from his supposed originalist methods.  Nor did he even attempt to refute Justice Thomas' originalist dissent.  Why not?

Supreme Court Justices properly refuse to respond to every nit-picky argument.  But whether or not a Justice is applying his supposed core judicial philosophy is hardly a small point.  Moreover, Scalia once joined every part of an opinion except a footnote that cited legislative history, to make clear his vision of statutory interpretation.  So he's not afraid to take rather petty measures to ensure his personal vision of the Constitution remains clear.  Why was similar vigilance lacking in Raich?

Again, I'm not arguing that Justice Scalia voted the way he did because he hated marijuana.  Still, I do understand why others might suspect otherwise.

Justice Thomas joined all but Part III of Justice O'Connor's dissent, which in relevant part reads:

If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent

I wonder....

UPDATE: Thanks to Marty Lederman for sharing this e-mail from Professor Sandy Levinson (which I hadn't seen but was nonetheless written before my post):

I note that Rehnquist and Thomas do not join in the very short part III of O'Connor's dissent, presumably because of the following lines:

"If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case."

So why didn't they join?  A) It is inappropriate for justices to offer their gratuitous views on political issues.  But this can't be the explanation given Thomas's statements in his Lawrence dissent as to the merits of Texas's statute.  So maybe it is B) Were Thomas (and Rehnquist, who may look at the world somewhat differently now that he has received chemotherapy) would, as a matter of fact, vote for such laws. (Query:  Did Justice O'Connor receive chemotherapy for her breast cancer?)

Consider Thomas's statement at the conclusion of his opinion that "The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill."  To be sure, this may simply be descritive of what California has "concluded."  But I think that the phrase "much-needed respite" may bespeak a "compassionate conservatism" (I am not being sarcastic).  And note, incidentally, the conclusion of Stevens' majority opinion, which I read as an expression of hope that Congress will indeed come to its senses regarding such regulation of medical marijuana.

I tend to read the Constitution in a way that takes seriously the idea of enumerated -- and therefore limited -- powers.  Accordingly, I tend to frame "federalism" cases in terms of the presence (or absence) of constitutional authorization for the federal action in question, and less in terms of "states' rights."

Well said.

Just click here and keep scrolling down.

The absence of a statement sometimes is itself a statement.  If there was ever any doubt whether Justice Scalia's originalist methods control his judicial outcomes or whether his desired outcomes dictate the application of originalism, read his ten-page concurring opinion.  Not once does he mention an original understanding of the Commerce or Necessary and Proper clauses.   Then read Justice Thomas's dissent, which beautifully explicates the original meaning of the Necessary and Proper Clause.

Sadly, there is only one Supreme Court Justice with a chest.

UPDATE: David Berstein eloquently exposes Scalia's "originalism":

Justice Scalia's concurrence, unlike Justice Thomas's dissent, does not address the original meaning of the Commerce Clause. This reflects a pattern with Scalia, apparent also in his affirmative action, First Amendment, and other opinions: he is much more likely to resort to originalist arguments when they can be used to undermine Warren Court precedents that conflict with his deeply held moral and political views than when such arguments would either undermine his political views or challenge precedents that are not on the social conservative (tempered, as in First Amendment cases, by Scalia's academic elitist solicitude (which I share) for freedom of expression) "hit list."

First of all, I think this case is Clarence Thomas’ finest moment. Under immense pressure within conservative intellectual circles to find some way to rationalize an illegitimate, unconstitutional, illegal, unjust, ruinous drug war, Justice Thomas sticks to his principles and writes a profound, even moving dissent. “In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.” How true. And note his reference to the fears of the Anti-Federalists. Justice Thomas is the most frequent citer of the writings of the Anti-Federalists that the Court has ever seen. As I pointed out some years ago, he is right to do so, because we construe documents against the drafters, and the Constitution ought to be interpreted to assuage the Anti-Federalists’ concerns whenever possible. And the greatest Anti-Federalist writer, Brutus, was most concerned that the federal government would

introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!

Modern commerce clause cases have made Brutus right. As Justice Thomas puts it, “One searches the Court’s opinion in vain for any hint of what aspect of American life is reserved to the States.”

Second, I think Thomas makes an excellent point about the way the Court treats an as-applied challenge as opposed to a facial challenge. The majority essentially decides that, at least in commerce clause cases, if the statute is facially constitutional, it must always be constitutional in every application, no matter how minimal the activity in question. It appears that, if Lopez and Morrison mean anything anymore, these three cases can be reconciled only on the notion that laws can only be facially unconstitutional under the commerce clause, but never unconstitutional as applied. Few notions could be more dangerous to the Court’s role in policing the boundaries that the Constitution (supposedly) places on Congress’ authority.

Third, Thomas nowhere discusses Wickard. He cites it only once, when discussing facial versus as-applied. He’s discussed Wickard before, of course, in his great Lopez opinion, but at least a footnote saying he thinks Wickard should be overruled, would be helpful.

Finally, I think it’s great to see some serious discussion over the Necessary and Proper Clause. As Randy Barnett has pointed out, this appears to be the only clause of the constitution over which there has really only been a single case, McCulloch, and which every subsequent Court has refused to reconsider. And, on top of that, although it can’t be denied that McCulloch places limits on the Necessary and Proper Clause, those have been ignored, so that the case today stands for the proposition that the Clause is a blank check on power. Justice Thomas, however, shows that he is not willing to shut his eyes any time Congress asserts power. (“Congress declared that state policy would disrupt federal law enforcement..... But...Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power.... Congress cannot define the scope of its own power merely by declaring the necessity of its enactments.”)

Justice Thomas has written some bad decisions in the past. But in this case, he has shown a truly noble dedication to the Constitution’s actual meaning, actual limits, actual structure, actual words, and proven why he is one of the most thorough, interesting, and profound Justices ever to sit on the Supreme Court.

In a 6-3 opinion authored by Justice Stevens, the Supreme Court sided with the government in Gonzales v. Raich (formerly Ashcroft v. Raich).  Supreme Court experts had predicted a 9-0 or 8-1 victory for the government, so in a sense, this is a victory for enumerated powers advocates and social justice.

Justice Stevens and the other liberals on the Court have continually overlooked the fact that the federal criminal justice system falls disparately upon blacks.  A win for Raich would have meant fewer federal criminal laws, and thus, a lesser burdened on an already oppressed class of people.  Moreover, federal federal criminal laws would mitigate any bad Fourth Amendment opinions.  Fewer laws to enforce means fewer opportunities to violate civil rights.  But that is not be - at least not yet. 

Raich reaffirms my support of President Bush's judicial nominations.  It is crucial for individual liberty that the Court have more members like Justice Thomas. 

The Raich opinion is available here.  Here's the core holding:

Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself “commercial,” in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.  

The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.28 Just as the Agricultural Adjustment Act was designed “to control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses . . .” and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. 

Slip op. at 15.

The "Market Argument" Prevailed
The Court accepted the goverment's "market argument:"

More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard.  The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.

Slip op. at 16.

Rational Basis Rules.
After Lopez and Morrison, some wondered what level of review would apply in Commerce Clause decisions.  It seems that rational basis rules. Per Justice Stevens, writing for a 6-3 Court:

In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions.

Slip op. at 16.  More to the point:

In assessing the scope of Congress’ authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.

Id. at 19.  Justice Scalia agreed:

I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market “could be undercut” if those activities were excepted from its general scheme of regulation. See Lopez. That is sufficient to authorize the application of the CSA to respondents.

Scalia's concurring opinion at 10.

The Court Doesn't Get Federalism
In her dissenting opinion in Gonzales v. Raich, Justice O'Connor wrote:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government.

James Madison would have disagreed:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. 

The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  By limiting the states and Congress to their proper prerogatives, the People would enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.  Federalism is concerned with individual liberty, not "state sovereignty" or "power."

Gonzales v. Raich's (Immediate) Aftermath
Gonzales v. Raich will have an immediate effect on three lower-court opinions in which the government had petitioned for cert. in three recent cases, but had asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the p*rnographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exacerbated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child p8rnography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could, under the Commerce Clause, criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child p*rnography).  The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases.    But it's worth keeping an eye on them.

Gonzales v. Raich will have an immediate effect on three lower-court opinions in which the government had petitioned for cert. in three recent cases, but had asked that the Court hold the cert. petitions pending the outcome of Raich.  I'll summarize the cases and then link to the cert. petitions.

United States v. Maxwell and United States v. Smith are two important Commerce Clause decisions from the Eleventh Circuit Court of Appeals.  In Maxwell a unanimous three-judge panel held that 18 U.S.C. 2252A(a)(5)(B), which makes it a federal crime to posses child p*rnography on materials that traveled in interstate commerce, was an invalid exercise of Congress' commerce power.  Judge Tjoflat wrote for the panel that since Maxwell's possession of the pornographic images was non-commercial, it would not apply Wickard v. Filburn's aggregation principle.  Slip op. at 37 ("We believe this aggregate approach cannot be applied to intrastate criminal activity of a non-economic nature.")

In Smith, another Tjoflat opinion, a unanimous three-judge panel of the Eleventh Circuit, applying plain error review, reversed another conviction obtained under Sec. 2252A(a)(5)(B).  Maxwell and Smith exasperated a circuit split concerning Congress' power to criminalize the intrastate creation and possession of child pornography.

Another important case testing the limits of Congress' commerce power is United States v. Stewart.  In Stewart, a 2-1 panel of the Ninth Circuit, per Judge Kozinski, held that Congress could criminalize the possession of homemade machine guns. The defendant in Stewart used parts that traveled in interstate commerce to convert his semi-automatic rifle with the capability to fire automatically, i.e., Stewart's rifle would fire repeatedly without his having to continually pull the trigger.

The Maxwell cert. petition is available here; the Smith cert. petition is available here; the Stewart cert. petition is available here.  The government has requested that all three petitions for a writ of certiorari be held and then disposed of in light of Ashcroft v. Raich.

Post-Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography).  The Court will likely GVR (grant cert., vacate the judgment, and remand for reconsideration) these cases.    But it's worth keeping an eye on them.

In her dissenting opinion in Gonzales v. Raich, Justice O'Connor wrote:

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government.

James Madison would have disagreed:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among the distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other, at the same time that each will be controlled by itself. 

The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).  By limiting the states and Congress to their proper prerogatives, the People would enjoy greater freedom since the structure of federalism would prevent Congressional overreaching into local affairs.  The people would have two servants, not two masters.  Federalism is concerned with individual liberty, not "state sovereignty" or "power."